|LOCAL NO. 831, INTERNATIONAL ASSOCIATION|||||CASE 426|
|OF FIREFIGHTERS, AFL*-CIO,||||
|CITY OF NORTH PLATTE, Lincoln County,||||
Before: Gradwohl, Berkheimer and Orr
On September 3, 1981, the Commission held a hearing on the Association's request for a Temporary Order and conducted a conference pertaining to preliminary proceedings under Section 48*-816. The Association was represented by Donald E. Rowlands II, Attorney, Baskins & Rowlands, North Platte. The City was represented by William A. Harding, Attorney, Nelson & Harding, Lincoln. Both parties filed Post-Hearing Briefs.
From the evidence presented, we find:
1. The Association became the certified exclusive bargaining representative for City of North Platte Firefighters on August 21, 1978. Local 831, International Association of Firefighters v. City of North Platte (Case No. 262; order entered August 21, 1978, filed August 24, 1978).
2. The bargaining unit presently consists of all captains, unit officers/lieutenants, firefighters, fire protection specialists, and fire marshall aide. The bargaining unit excludes fire chief, fire marshall, battalion commander, secretary to the fire chief and building maintenance and custodial personnel.
3. The parties attempted to arrive at an Agreement for 1981-1982 wages and working conditions. After a number of bargaining sessions, including meeting with a federal mediator, the parties reached an impasse in the negotiations. The parties are presently at a bargaining impasse.
4. The parties agreed that during negotiations, they would compare North Platte Fire Department wages and conditions of employment with wages and conditions of employment in Columbus, Fremont, Grand Island, Hastings, Norfolk, and Scottsbluff. These six cities were also agreed to by the parties in a 1978-1979 wage case before the Nebraska Commission of Industrial Relations, but the Commission did not include Columbus because ". . . the evidence demonstrated that its department structure is so different from the rest of the array that it should not be used. Its small paid force is composed of principally drivers and crew leaders who surrender command to a ranking volunteer as soon as one comes on the scene." Local No. 831, International Association of Firefighters v. City of North Platte , 4 CIR 12, at 17 (1979).
5. Both parties had information concerning wages and working conditions for fire department employees in the six agreed cities during negotiations.
6. The City's information it possessed during negotiations indicated that some increases in wages would be due the North Platte Fire Department employees for the 1981-1982 fiscal year.
7. The City told the Union during negotiations that some increases in wages would be due North Platte Fire Department employees for the 1981-1982 fiscal year. Based primarily upon its information concerning the six agreed cities, the City during negotiations offered to pay a 6 1/2 per cent increase to Firefighters, a 1 per cent increase to Lieutenants, a 3 per cent increase to Fire Protection Specialist, and a 22 per cent increase to Fire Marshall's Aide. The City also took the position that the North Platte Fire Department Captains do not perform the same or similar work under the same or similar working conditions as Captains in the fire departments of the other six cities and that the wages of North Platte Fire Department Captains should be reduced 1 per cent for the 1981-1982 fiscal year.
8. The City refused to show the Union its figures for the six agreed cities during negotiations, although the Union requested the City to do so. The Union offered to exchange its information in this respect with the City, but the City declined.
9. The City gave all City employees except police and fire Union members an increase in pay of 9.28 per cent and also added longevity pay for the 1981-1982 fiscal year. Ordinance No. 2370 states in part:
SECTION 1. The classes of work described in Schedule A attached are hereby adopted as the classification plan for the City of North Platte, together with the grade indicated for each such class.
SECTION 2. The pay plan set out in Schedule B is hereby adopted as the pay plan for the City of North Platte, together with the pay rates indicated for each grade in the pay plan. The rates of pay for each class in the classification plan (Schedule A) shall be those set out in the pay plan (Schedule B) for the corresponding grade of the class. Longevity shall be paid to all non-union bargaining members in accordance with Schedule B-1.
SECTION 3. The several positions in the classified service of the City shall be allocated to the several classes in the classification plan (Schedule A) as indicated in Schedule C, which is hereby adopted as the allocation plan for the City of North Platte.
SECTION 4. The positions of the employees who are members of the North Platte Police Union Local 582 shall receive compensation in accordance with Ordinance No. 2366.
SECTION 5. The positions of employees who are members of the International Association of Firefighters, Local 831 shall receive compensation in accordance with Schedule D, attached to this Ordinance.
SECTION 6. The positions of non-union personnel in the Police and Fire departments shall be paid in accordance with Schedule E, attached to this Ordinance.
10. All of the City's non-union employees have received a 9.28 percent pay increase and longevity pay since the first pay period inclusive of August 2, 1981. The amount of the longevity pay is $5 per month after five years, $10 per month after 10 years, and $15 per month after 15 years.
11. Members of the International Association of Firefighters, Local 831, have received no increase in pay above their 1980-1981 wages and have not received the longevity pay added to their wages of the City's nonunion employees for 1981-1982.
12. The City offered no explanation to the Association why the wages of North Platte Fire Department employees were not increased other than that collective bargaining negotiations with the Association had not produced an Agreement. The Association had previously advised the City that it intended to file an action in the Commission of Industrial Relations if the City did not grant the increases the Association had requested during negotiations. The parties were at an apparent bargaining impasse when Ordinance No. 2370 was adopted. The City has commenced a comparability study of the wages and conditions of employments for all City employees, including members of the Fire and Police Departments.
13. At the hearing on the Association's request for a Temporary Order, the City offered no explanation why North Platte Fire Department wages and conditions of employment had not been changed for the 1981-1982 fiscal year except that its comprehensive survey being prepared for a determination under Section 48-818 in this matter may contain significant differences from the information possessed by the City during collective bargaining negotiations. Richard L. Grady, City Administrator, Clerk, and Treasurer, testified (Record, pages 35-37):
HEARING OFFICER: ... You had information during negotiations,I trust, from the study that you conducted at that time by telephone that you've described that indicated the North Platte firefighters, lieutenants, aides, and fire protection specialist but not the captain were entitled to some increase based on this comparability study.
THE WITNESS: Yes.
HEARING OFFICER: Now, do you know any reason why they did not receive that increase?
THE WITNESS: That increase that the City felt was justifiable for--
HEARING OFFICER: That increase that the City felt was justifiable from the figures it did have available during negotiations.
THE WITNESS: No, the Council had discussed it as to whether to, you know, implement that increase that they thought was justifiable under theirs, but yet they felt that they couldn't come to an agreement with the firefighters. And rather than going ahead with it and not having a contract, they just not give it and go and do an actual survey and study that we're now performing to see where comparability is.
HEARING OFFICER: And I take it the survey might come out the lower figures than the tentative figures you were going to use for the purposes of negotiations?
THE WITNESS: I think it could go either way because we were looking at salaries prior to August 1st where other cities gave their increases, I would assume, August 1st and then putting in a factor for a cost of living increase upon that comparability. That cost of living increase that was assumed to be within the average range of the cities that were going to be listed, I guess, could vary by the actual increase they gave. So, yes, there could be some variance between figures.
Later, Grady stated (Record, page44):
Q. Going back to Judge Gradwohl's question, do you know of any concrete reason other than the fact that no agreement was made with the bargaining unit why the 9.28 increase was not given to members of the bargaining unit?
During the conference on preliminary proceedings under Section 48-816, Counsel for the City, after explaining the nature of the impasse reached during negotiations, especially as to a reduction in the wages for captains and possibly other bargaining unit members, stated (Record, pages 61-62):
It is the City's view that it would be better to make the impasse as soon as reasonably possible utilizing that process.
HEARING OFFICER: And I take it from the City's standpoint that was the reason for authorizing no wage increase in August?
MR. HARDING: That's right. The parties were at impasse and the counsel for the union had forecast very concisely at the final bargaining session before the federal mediator arrived that a comparability case would be filed in the very near future with the Commission. So the City was put on notice that a proceeding before this Commission was intended to break the impasse based upon that. Based upon the City's assessment at that time, certain of the jobs might have an increase and certainly some wouldn't have an increase as large as the across the board granted to other City employees in a sense that none of the other City's employees were performing, in the assessment of the City, same or similar work.
The City didn't grant that increase. The City considered but restricted its option to implement its final proposal.
14. Despite the apparent existence of some overlap in the actual duties performed, we find for the purposes of this Temporary Order proceeding that (a) North Platte city employees outside the bargaining unit are not in the same job classifications as employees in the bargaining unit; and (b) employees in the bargaining unit do not perform the same or similar work as North Platte city employees outside the bargaining unit. In the 1978-1979 wage case before the Commission, the determination of comparability was made with employments in Fremont, Grand Island, Hastings, Norfolk and Scottsbluff except for the position of Clerk Typist. Local No. 831 v. City of North Platte , 4 CIR 12 (1979). The former position of clerk typist has now become fire marshall aide.
15. This proceeding was initiated by the Association on August 21, 1981. The City's Answer was filed a week later, in much less than the twenty days allowed for a responsive pleading under Section 43-813. Both parties will need until late September or early October to be prepared for a pretrial conference. It appears that the trial can be held within 60 days of commencement of the proceeding and a decision rendered within 30 days thereafter as specified in Section 48-813.
The following authorities empower the Commission to enter a Temporary Order in this instance:
1. Paragraph (1) of Section 48-816 provides:
The commission shall have power and authority upon its own initiative or upon request of a party to the dispute to make such temporary findings and orders as may be necessary to preserve and protect the status of the parties, property and public interest involved, pending final determination of the issues.
2. Part of the "industrial dispute" shown to exist by the pleadings and the evidence concerns the time at which the increases for 1981-1982, if any are to be made or ordered, shall become effective. That controversy constitutes an industrial dispute "concerning terms, tenure or conditions of employment" within the definition in Section 48-801(7). Section 48-810 provides that "All industrial disputes involving governmental service ... shall be settled by invoking the jurisdiction of the Commission of Industrial Relations...
3. Section 48-819.01 provides:
Whenever it is alleged that a party to an industrial dispute has engaged in an act . . . which interferes with, restrains, or coerces employees in the exercise of the rights provided in sections 48-801 to 48-838, the commission shall have the power and authority to make such findings and to enter such temporary or permanent orders as the commission may find necessary to provide adequate remedies to the injured party or parties, to effectuate the public policy enunciated in section 48-802, and to resolve the dispute.
Section 48-837 grants Nebraska public employees the following rights:
Public employees shall have the right to form, join and participate in, or to refrain from forming, joining, or participating in, any employee organization of their own choosing. Public empioyees shall have the right to be represented by employee organizations to negotiate collectively with their public employers in the determination of their terms and conditions of employment, and the administration of grievances arising thereunder ...
In this matter, the City has engaged in acts which interfere with, restrain or coerce the members of the union in the exercise of their rights provided in Section 48-837. A large portion of the text of the Supreme Court Opinions in Local No. 2088 v. County of Douglas , 208 Neb. 511, 304 N.W.2d 368 (1981), supplemental opinion, 209 Neb. 597, 309 N.W. 2d 65 (1981), is set out below. While a different factual situation may be presented in this matter than in Local No. 2088 , the nature of the interference, restraint and coercion of public employees' rights is essentially the same.
The City contends that Section 48-819.01 is unconstitutional on two grounds (1) vagueness under the Fourteenth Amendment to the Constitution of the United States, and (2) unconstitutional delegation of authority under the Constitution of Nebraska. These allegations are without merit. It is the Legislature, not this Commission, which has proscribed the employee rights involved in this matter. These rights are spelled out in Section 48-837. Section 48-819.01, both of its literal language and legislative history, merely provides that when a party to an industrial dispute does an act which interferes with, restrains or coerces employees in the exercise of their rights under Section 48-837, the Commission has authority to enter "such temporary or permanent orders as the commission may find necessary to provide adequate remedies to the injured party or parties, to effectuate the public policy enunciated in section 48-802, and to resolve the dispute." The City does not contend that it did not have adequate notice of the potential effect of the Nebraska statutes in this instance. In this respect, Richard Grady testified on examination by counsel for the Association concerning a meeting of the North Platte City Council on July 21, 1981 (Record, pages 23-24):
Q.Would you relate to the Court the substance as you recall it and the statements made by members of the Council during that discussion?
A.To the best of my recollection at that time it was trying to prepare our budget for the final hearing. The Council instructed that all non-union City employees be granted the 9.28 percent increase and that fire personnel--the salary ordinance be prepared with no increase or the same salary that they were on the previous year.
Q.Now, were there discussions during that meeting especially from Councilman McGuire who was on the City negotiating team for this year attempting to arrive at an agreement with the fire union regarding the possibility that the City could be subject to an unfair labor practice lawsuit if the City gave nonunion employees an across-the-board 9.28 percent increase?
A.Yes, I believe there was.
Q.And is it fair to say that Councilman McGuire brought it to the whole Council's attention that he had been advised by the City's attorney that they were leaving themselves wide open for an unfair labor practice lawsuit if the across-the board increase was given to nonunion City employees, in the general terms as what you said?
Q.And notwithstanding that discussion and the apprehension by Councilman McGuire, the City Council did go ahead and grant the 9.28 across the-board increase for nonunion employees plus longevity pay and gave the Fire Department union no increase?
It is significant that the City does not cite or quote the very provision of the Nebraska Constitution which it contends Section 48-819.01 violates on the delegation issue. Article II, Distribution of Powers, of the Nebraska Constitution provides:
The powers of the government of this state are divided into three distinct departments, the legislative, executive and judicial, and no person or collection of persons being one of these departme*nts, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.
The drafters of the Nebraska constitutional amendments of 1920 added Article XV, Section 9, outside of the Legislative, Executive, and Judicial Articles so that the Legislature might create an industrial commission possessing a variety of powers. Section 48-802 states clearly the legislative purpose "To make operative the provisions of Section 9, Article XV, of the Constitution of Nebraska." Section 48-803 adds that "In order to carry out the public policy of the State of Nebraska as set forth in section 48-802, there is hereby created an industrial commission to be known as the Commission of Industrial Relations." The Commission of Industrial Relations, therefore, like several other state agencies having a foundation in the Nebraska Constitution, is not a "Person or collection of persons being one of these departments" and also falls within the language "except as hereinafter expressly directed or permitted" in Article 11 of the Nebraska Constitution. Further, even under the ordinary rules of separation and delegation of powers in Nebraska, Section 48-819.01 would not be improper or unconstitutional.
4. The Nebraska Supreme Court has also laid a basis for the entry of a Temporary Order in this matter. The initial opinion in Local No. 2088 v. County of Douglas , 208 Neb. 511, 525-527, 304 N.W.2d 368, 376-377 (1981), stated:
We do believe, however, that one further matter requires comment. Though it was not raised by either party, the record discloses that Douglas county may have granted to county employees not members of AFSCME a raise but withheld the same to members of AFSCME because of the existence of a labor dispute. We believe such practice is both improper and illegal. In a separate opinion in Lincoln Fire Fighters Assn. v. City of Lincoln , 198 Neb. 174, 187, 252, N.W.2d 607, 615 (1977), it was correctly observed: 'In an unregulated labor market, labor and management test their relative market power through bargaining. This testing may include resort to the strike or the lockout. However, the Legislature decided that the services provided by emplovees subject to [the CIR'S] jurisdiction were too vital to allow interruption while employer and emplovees tested the merits of their claims by trial by battle. When discussion is barren, employers and employees in the public sector are routed [to the CIR]. Judicial mandate replaces economic power as to the determinate of wages.' We recognize, therefore, that the public employer and the public employee do not stand on the same footing as employers and employees in the private sector.
The policy of the public sector law in Nebraska is clear. It is to insure '[t]he continuous, uninterrupted and proper functioning and operation of the governmental service. . .' See Neb. Rev. Stat. § 48-802 (Reissue 1978). If, on the one hand, employees may not refuse to work with out risk of discharge, employers may not refuse to pay employees the wage established by the governmental employer for such work.
Furthermore, Neb. Const, art. XV, §§ 13 and 15, would indicate that public employees may not be discriminated against or punished because they have sought collective bargaining and have reached an impasse with the public employer. In the case of Local Union No. 647 v. City of Grand Island , 196 Neb. 693, 244 N.W.2d 515 (1976), it was determined that any attempt by management to dissuade employees from joining a union is an unfair and unlawful act. To withhold from employees the salary which the governmental employer has determined is at least the minimal appropriate wage for no other obvious purpose but to punish the public employee is not permitted.
Logic indicates to us that the wage to be paid for similar work during a given year to employees not involved in the dispute would be the minimum wage the employer could pay to those involved in the dispute. Any other conclusion would result in the employer favoring nondisputing employees over disputing employees, in violation of Neb. Const. art. XV, §§ 13 and 15.
As an example, if the public employee in this case were to dismiss its suit in the CIR, it would be paid at least that amount which the public employer has determined to be appropriate for all employees in a given year. We therfore fail to see how the existence of a labor dispute in the public sector can authorize the public employer to withhold from the public employee wages which the public employer has publicly declared to be, at a minimum, the appropriate wage for the job performed and to require the public employee to continue performing services at a wage which has been determined for a previous year and which, by the employer's own determination, is below the comparable wage.
It is therefore the order of this court that no public employer shall withhold pay raises otherwise determined to be granted to public employees in a given year solely on the basis that they are then engaged in a labor dispute over a previous year's wages. Such a declaration may, in fact, cause some disputes to become moot. It would occur to us that that would be in keeping with the policy of the entire act and consistent with the Legislature's desire that the public policy of this state be such that there be no interruption of public service. The action of the CIR in the instant case is reversed and remanded for further proceedings in accordance with this opinion, if necessary.
REVERSED AND REMANDED WITH DIRECTIONS
After reargument of the issue on the County's and State's Motion For Rehearing, the Supreme Court issued a Supplemental Opinion which changed only the last paragraph of its former opinion. The Supplemental Opinion, AFSCME Local 2088 v. County of Douglas , 209 Neb. 597-598, 309 N.W. 2d 65 (1981), states:
In argument on the motion for rehearing, appellee maintains that the language of our opinion previously adopted and appearing at 208 Neb.511, 304 N.W.2d 368 (1981), with regard to the obligation of the public employer to the public employee over subsequent years' raises, is ambiguous. In an effort to clarify our position, we substitute the following language to our opinion, in lieu of that language which now appears as the last full paragraph of the opinion:
It is the holding Of this court that once a public employer has established a rate of pay for the performance of a particular job in a specific year by granting an across-the-board, cost-of-living wage increase to a group of employees, it may not withhold paying that salary to an employee of the classification granted the raise and performing that work, who would otherwise be entitled to payment at the increased rate of pay, solely on the basis that at the time the payment should otherwise be made the public employer and the bargaining representative of the employee are then engaged in a labor dispute. Bv so declaring, we intend that the wage which should be paid to a public employee by a public employer during a dispute is that wage which the public employer has declared as the appropriate wage to be paid and which it would othersie agree to pay the public employee if no dispute then existed. As an example, if in the instant case all county welfare employees were granted an increased of 7 percent across the board as a cost-of-living wage increase, the county may not pay the increase to nondisputing employees while escrowing the funds belonging to disputing employees until the dispute is terminated. Such a declaration may, in fact, cause some disputes to become moot. It would occur to us that that would be in keepng with the policy of the entire act and consistent with the legislature's desire that the public policy of this state be such that there be no interruption of public service. The order of the CIR in the instant case is reversed and the cause remanded for further proceedings in accordance with this opinion, if necessary.
REVERSED AND REMANDED WITH DIRECTIONS.
5. There are two separate provisions in Section 48-823 which provide the Commission authority in this matter.
(a) Incidental Powers. The second sentence of Section 48-823 states:
All incidental powers necessary to carry into effect the provisions of section 48-801 to 48-823 are hereby granted to and conferred upon the commission herein created.
The provisions within Sections 48-801 to 48-823 to which this sentence relates in this matter are Sections 48-802, 48-810, 48-816 (1), and 48-819.01.
(b) Liberal Construction of Power, Authority and Jurisdiction. The First sentence of Section 48-823 states:
The provisions of sections 48-801 to 48-823 and all grants of power, authority and jurisdiction herein made to the Commission of Industrial Relations shall be liberally construed to effectuate the public policy enunciated in section 48-802.
The provisions within Sections 48-801 to 48-823 to which this sentence relates in this matter are Sections 48-810, 48-816(1), and 48-819.01.
It is hereby Ordered:
In the event the Commission in its final order in this matter orders an increase in wages or longevity pay, such final order will contain interest at the legal rate specified in Section 45-102 for the period to the date of the Commissions's final order. No determination is made in this Temporary Order with respect to interest, if any, following the date of the Commission's final order. A ruling on interest, if any, following the date of the final order is reserved until the final order. See I BEW Local 763 v. Omaha P.P. Dist. , 209 Neb. 335, 307 N.W.2d 795 (1981)
(Motion for Rehearing Pending).
All Judges assigned to the Panel in this matter join in the entry of this Temporary Order.
Entered September 22, 1981.